Chumasero v. Gilbert

Caton, C. J.

The variance complained of in the first of these caus'es, does not exist as to the declaration ; but it is complained that in the copy of the note filed with the declaration, the word “ six” in the note is written sis, and that for this variance the note should have been excluded. If this was such a variance as' the court would notice in any place, it can take no notice of it here. The party went to trial, without complaint that a true copy of the note sued on was not filed with the declaration, and it was then too late to object that there was a variance between the copy and the note, or even that no copy whatever had been given. The declaration sets but the notes and indorsements properly.

If, in the second case, there was the variance complained of, the necessary proof was introduced to admit the note under the common count. But we are not prepared to say that the imperfect manner in which the “m” was written in the name of Chumasero, the maker of the note, in the declaration, constituted, in fact, a substantial variance, for which it should have been excluded.

In the other case, it is said that no copy of the indorsement of the note was filed with the declaration, and for that reason, the note and indorsement should have been excluded. This is answered by what has been said to a similar objection in the first case.

In all the cases, the same question about interest is presented. The note was executed in this State, and payable in New York. There is no averment as to what interest is allowed in New York, and the court allowed six per cent, interest under, the laws of this State. Now this is precisely what we said should have been done in the second of these cases, when it was before us at a previous term, and is reported in 24 Ill. 293; and what this court decided in Forsyth v. Baxter, 2 Scam. 11, was the proper course.

The judgments are affirmed. Judgments affirmed.